Filed 4/20/15 Beverly Hills Estate, LLC v. Warner CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

BEVERLY HILLS ESTATE, LLC,

Plaintiff and Respondent,

v.

MARTIN WARNER et al.,

Defendants and Appellants.

 B254276

 (Los Angeles County

 Super. Ct. No. SC120070)

APPEAL from a judgment of the Superior Court of Los Angeles County, Gerald 

Rosenberg, Judge. Reversed and remanded.

Theresa A. Jones for Defendants and Appellants Martin and Susan Warner.

Maureen Jaroscak for Plaintiff and Respondent Beverly Hills Estate, LLC.

__________________________
2

Appellants Martin and Susan Warner (collectively, the Warners) appeal from the 

order denying their motion to set aside the default and default judgment entered against 

each of them in an unlawful detainer action brought by respondent Beverly Hills Estate, 

LLC. Among other arguments, the Warners contend that they were entitled to relief from 

default under Code of Civil Procedure1section 473, subdivision (d) because they were 

not properly served with a summons and complaint in the action. The Warners also 

assert that a summary unlawful detainer proceeding was not properly brought because 

Beverly Hills Estate owns the land, but not the dwelling house, from which the Warners 

were removed. We conclude that both the defaults and the default judgment must be 

vacated because service of process on the Warners was invalid and the complaint fails 

to state a cause of action in unlawful detainer. 

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

I. Unlawful Detainer Complaint

On February 14, 2013, Beverly Hills Estate filed an unlawful detainer complaint 

against the Warners and Does 1 through 10 in Los Angeles County Superior Court. The 

complaint alleged that Beverly Hills Estate was the owner of the premises located at 

20454 Pacific Coast Highway in Malibu, California, that the Warners were renting the 

premises pursuant to a written agreement with Beverly Hills Estate’s predecessor-ininterest, and that the unnamed Doe defendants were subtenants. It further alleged that the 

Warners had been served with five separate notices to quit on December 20, 2012, and

failed to comply with the terms of those notices. Beverly Hills Estate sought possession 

of the premises, forfeiture of the agreement, past rent in the amount of $27,940.68, rental 

value damages of $75.11 per day, and attorney’s fees and costs. 

A copy of the written agreement that formed the basis of Beverly Hills Estate’s

unlawful detainer action was attached as an exhibit to the complaint. The first document 

comprising the agreement, entitled “Lease and Improvement Contract of Sale,” was dated 

 

1 All further statutory references are to the Code of Civil Procedure.
3

April 26, 1976, and was entered into by Jaycee Investment Co. as the “Lessor and/or 

Lessor-Seller,” and by Floyd and Jean Ruch as the “Lessee and/or Lessee-Buyer” (the 

“1976 Agreement”). Paragraphs 1 through 3 of the 1976 Agreement provided that the 

Lessee was leasing certain real property from the Lessor as described in Exhibit A-1 for a 

period of 87 years, commencing on July 1, 1976 and continuing through September 30, 

2063, at a monthly rent of $195, subject to an annual consumer price index increase. 

Exhibit A-1 described the leased premises as “[a]n undivided one-half interest in Lot 4 of 

Tract No. 26816, in the county of Los Angeles, state of California as per map recorded in 

book 694 pages 66 and 67 of Maps, in the office of the county recorder of said county . . . 

EXCEPT all buildings and improvements situated on said land, which are and shall 

remain real property.” Paragraphs 9 and 10 of the 1976 Agreement provided that the 

Buyer was purchasing a certain real property improvement from the Seller as described in 

Exhibit A-2 for the purchase price of $25,868.32, payable in monthly payments of $226,

plus interest. Exhibit A-2 described the purchased property as “[t]hat portion of the 

residential dwelling unit and garage situated on Lot 4 of Tract No. 26816, in the county 

of Los Angeles, state of California as per map recorded in book 694 pages 66 and 67 of 

Maps, in the office of the county recorder of said county. . . .”2

The second document comprising the agreement, entitled “Modification and 

Amendment to Lease and Improvement Contract of Sale,” was dated May 26, 1985, 

and was entered into by Jaycee Investment Co. as the “Lessor and/or Seller,” and by the 

Warners as the “Lessee and/or Buyer” (the “1985 Amendment”). The 1985 Amendment

provided that the Warners had succeeded to the interest held by Jean and Floyd Ruch in 

the 1976 Agreement by assignment, and that in consideration of the Lessor-Seller’s 

consent to the assignment, the parties had agreed to certain amendments to the 1976 

 

2 The copies of the 1976 Agreement included in the record on appeal are not fully 

legible. While the above description provides a summary of certain legible provisions in 

the agreement, which are relevant to the issues on appeal, it is not intended to set forth all 

of the contract terms. Neither party has identified any other provisions in the agreement 

that would support its arguments on appeal. 
4

Agreement. An amended provision entitled “Rental” stated that the Lessee agreed to pay 

the Lessor a monthly rent of $437.52, subject to an annual consumer price index increase, 

for the leased premises. Amended provisions on assignments stated that the “Lessee’s 

interest in this Lease may not be assigned, sublet, or otherwise transferred” without the 

Lessor’s prior written approval, and the “Buyer may not assign, transfer or attempt to 

assign or transfer any right or interest it may have in and to the dwelling unit” without the 

Seller’s prior written consent. An amended provision entitled “Remedies of the Seller 

Under Contract of Sale” stated that if the Buyer breached any provision relating to the 

sale of the dwelling unit, the Seller had the right to declare all sums due under the 

contract of sale immediately due and payable, take possession of the dwelling unit and 

terminate the Buyer’s rights under the contract, and/or hold the dwelling unit for the 

Buyer and bring an action for specific performance. The 1985 Amendment attached an

executed “Assignment of Lease” dated May 20, 1985, in which the Warners were 

assigned “all right, title and interest to the leasehold estate and as to the equitable title to 

the fee estate created by that certain contract of sale” in the 1976 Agreement (the “1985 

Assignment”).

Copies of the notices that Beverly Hills Estate served on the Warners also were 

attached as exhibits to the complaint. The notices were dated December 15, 2012 and 

consisted of a three-day and a ten-day notice to pay rent or quit, a three-day and a ten-day 

notice to perform covenants or quit, and a 30-day notice to quit. The notices to pay rent 

or quit stated that “pursuant to the lease or rental agreement under which you hold the 

possession of the hereinafter described premises, there is now due and unpaid rent in the 

total sum of [$27,940.68].” The notices to perform covenants or quit likewise stated that 

“pursuant to the lease or rental agreement under which you hold the possession of the 

hereinafter described premises, you are in violation of the lease or rental agreement” as 

follows: “(1) Tenant has violated the covenants, conditions, and provisions of the lease 

by subletting the premises on multiple occasions without the consent of the 

landlord/owner. . . . [¶] (2) Tenant has failed to obtain insurance as provided for in the 

lease agreement. . . . [¶] (3) Tenant has failed and refused to pay taxes which are due on 
5

the premises as provided for in the lease agreement. . . . [¶] (4) The tenant has 

hypothecated the lease without permission or consent of the landlord/owner, and the 

tenant has incurred secured debt thereby transferring an interest in the lease to a third 

party without landlord[’]s permission or consent.” The notices provided that unless the 

Warners paid rent and remedied the violations, or vacated the premises within the 

specified time period, Beverly Hills Estate would declare a forfeiture of the lease and 

institute legal proceedings to recover possession of the premises as well as rent, damages, 

fees and costs. In each of the notices, the “premises” were described as being located and 

situated at “20454 Pacific Coast Highway, Malibu, California 90265.” 

The complaint also included a declaration from Stephen Distaso, a registered 

process server, which stated that, on December 17, 18, and 20, 2012, Distaso went to the 

residence located at 20454 Pacific Coast Highway to serve the Warners with the notices

to quit, but no one answered the door. Distaso further stated that, on December 20, 2012, 

he posted each notice in a conspicuous place at the residence and thereafter mailed a copy 

to the Warners at the 20454 Pacific Coast Highway address. 

II. Service of Summons and Complaint

On March 26, 2013, Beverly Hills Estate filed three proofs of service of summons

in the unlawful detainer action. According to the proofs of service, Distaso served Martin 

Warner, Susan Warner, and “All Unnamed Tenants in Possession” with copies of the 

summons and complaint on February 21, 2013, at the 20454 Pacific Coast Highway 

address. Distaso indicated that he used substitute service by leaving the documents with 

a competent member of the household at the dwelling house or usual place of abode of 

the party served, and then mailing copies to the party at the 20454 Pacific Coast Highway 

address. The person with whom the documents were left was described as male, 

approximately 45 years old, five feet nine inches tall, 200 pounds, with dark hair and 

eyes, who refused to give his name. 

In attached declarations of diligence, Distaso described his attempts to personally 

serve the Warners with the summons and complaint before using substitute service. As 
6

stated in the declaration, Distaso went to the residence at 20454 Pacific Coast Highway 

on February 17, 19, and 21, 2013. On February 17 and 19, 2013, no one answered the 

door and there were no vehicles in the driveway. On February 21, 2013, a man who 

was about 45 years old with dark hair and dark eyes answered the door. He would not 

provide his name, but confirmed that he lived on the premises. Distaso advised the man 

that he had papers to serve on Martin and Susan Warner and anyone else who lived at 

that address, and the man agreed to accept the papers. Distaso left three copies of the 

summons and complaint with the man and thereafter mailed copies to the Warners and 

all unnamed tenants at the 20454 Pacific Coast Highway address. 

III. Entry of Default and Default Judgment

Neither the Warners nor any tenant in possession of the premises filed a timely

response to the unlawful detainer complaint. On March 26, 2013, Beverly Hills Estate 

filed a request for entry of default and a clerk’s judgment against each of the defendants 

on Judicial Council of California form CIV-100. In requesting entry of a clerk’s 

judgment, Beverly Hills Estate checked the box on the form requesting “restitution of the 

premises only” and “a writ of execution on the judgment.” However, on the same form, 

Beverly Hills Estate also sought a monetary judgment of $28,525.68, consisting of 

$27,940.68 in past rent as demanded in the complaint plus $585 in costs. The clerk of the 

court entered the defaults of Martin Warner, Susan Warner, and all unnamed tenants in 

possession of the premises on March 26, 2013.3

On April 8, 2013, the clerk entered a first amended default judgment against 

Martin and Susan Warner on Judicial Council of California form UD-110, which is used 

 

3 For reasons that are not clear from the record, Beverly Hills Estate filed a 

duplicate set of requests for entry of default and a clerk’s judgment against each of the 

defendants on April 5, 2013, in which it asked for the same relief sought in the prior 

requests. In response to this second set of requests, the clerk of the court again entered 

the default of each defendant on April 5, 2013. 
7

in unlawful detainer actions.

4 The amended judgment provided that Beverly Hills Estate 

was entitled to the possession of the premises located at 20454 Pacific Coast Highway. 

Although it expressly stated that it was a clerk’s judgment under section 1169 “[f]or 

possession only of the premises,” it also awarded Beverly Hills Estate monetary damages 

consisting of $27,940.68 in past-due rent and $585 in costs. The amended judgment

further stated that the lease was forfeited. On April 8, 2013, Beverly Hills Estate served a 

notice of entry of default judgment on the Warners by first class mail at the 20454 Pacific 

Coast Highway address. 

Upon entry of the amended default judgment, Beverly Hills Estate also applied for 

issuance of a writ of execution and possession. The application stated that an unlawful 

detainer judgment had been entered in favor of Beverly Hills Estate and against the 

Warners for $28,525.68 and the following property: “Real property at 20454 Pacific 

Coast Highway, Malibu CA 90265 Lot 4 of Tract 26816 as recorded in Book 694 pages 

66 & 67 in the office of the LA County Recorder.” The clerk issued a writ of possession 

for the property, as described in the application, on April 8, 2013.

IV. The Warners’ Motion for Relief from Default

On October 2, 2013, the Warners filed a motion to set aside their defaults and to 

vacate the default judgment. The Warners argued in their motion that they were entitled 

to relief from default on each of the following grounds: (1) the defaults and default 

judgment were void under section 473, subdivision (d) based on invalid service of 

summons; (2) the defaults should be set aside under section 473, subdivision (b) because 

the failure to timely respond to the complaint was due to surprise or excusable neglect;

(3) the defaults should be set aside under section 473.5 because the Warners lacked actual 

notice of the proceedings in time to defend the action; (4) the defaults should be set aside 

 

4 The original default judgment was entered by the clerk on April 5, 2013 on 

Judicial Council of California form JUD-100, which is used in general civil actions. 

The original judgment awarded Beverly Hills Estate monetary damages, but did not 

make any order for possession of the premises. 
8

under the court’s equitable powers because Beverly Hills Estate did not own the dwelling 

house located on the premises or have a lease agreement with the Warners for occupancy 

of the dwelling house; and (5) the judgment was void pursuant to section 1169 because 

the clerk of the court exceeded its authority in entering a default judgment for any relief 

other than restitution of the premises. 

The motion was supported by a declaration from Susan Warner. As set forth in 

the declaration, the Warners moved out of the house located at 20454 Pacific Coast 

Highway sometime in 2012 and began renting the house to Kevin Mofidi in September 

2012. At all times since September 2012, the Warners had been living at an address in 

Shadow Hills. In December 2012, the Warners commenced an eviction action against 

Mofidi because he had failed to pay any rent. A judgment was entered in favor of the 

Warners and against Mofidi on June 28, 2013, and a writ of possession entitling the 

Warners to restitution of the residence was issued on that date.5 The sheriff turned over 

possession of the residence to the Warners on July 24, 2013. At some point between 

July 24, 2013 and August 6, 2013, the Warners discovered that an unlawful detainer 

action had been filed against them when they went to the residence and found documents 

related to the action on the floor. The Warners later obtained copies of the default 

judgment and proofs of service of summons from the court. While the proofs of service 

indicated that the summons and complaint were left with a 45-year-old man with dark 

hair and eyes, Martin Warner was 65 years old at the time with gray hair and blue eyes. 

On August 6, 2013, two weeks after recovering possession of the residence from Mofidi, 

the Warners were evicted from the property by Beverly Hills Estate.

As further stated in the declaration, the Warners owned the house located at 20454 

Pacific Coast Highway, and had a separate lease agreement for the land on which the 

house was built. There was a deed of trust for the house in the amount of $1.4 million, 

 

5 The declaration attached a copy of the writ of possession issued in the Warners’ 

unlawful detainer action against Mofidi, along with a copy of a month-to-month lease 

agreement for the residence between the Warners and Mofidi. 
9

which had been recorded with the Los Angeles County Recorder on May 30, 2007. 

Beverly Hills Estate purchased the land lease in December 2012, but did not purchase the

house. The notices to quit on file in the unlawful detainer action showed delinquent 

payments of $2,328.39 per month, which was the amount due under the land lease. The 

Warners had a separate mortgage payment of $4,500 per month for the house, which was 

not a part of the lease agreement. Although the Warners were behind in their land lease 

payments, the house was not in foreclosure by their lender at the time Beverly Hills 

Estate evicted them from the entire property, including the house, on August 6, 2013. 

V. Beverly Hills Estate’s Opposition to the Warners’ Motion 

In its opposition to the Warners’ motion to set aside the defaults and the default 

judgment, Beverly Hills Estate argued that the Warners properly were served with a 

summons and complaint by substitute service at their residence and usual mailing 

address, and had failed to bring their motion for relief from default within a reasonable 

time after entry of judgment. Beverly Hills Estate also asserted that the Warners’ breach 

of the lease agreement gave rise to an unlawful detainer action because there was no legal 

distinction between a “land lease” and an “ordinary lease,” and both types of leases were 

governed by the law of contracts. In response to the Warners’ claim that the clerk of the 

court could not award monetary damages, Beverly Hills Estate conceded that the clerk’s 

default judgment called for possession of the premises only and stipulated to waiving any 

damages award. Beverly Hills Estate also claimed that granting the Warners relief from 

default would displace a bona fide lessee, who had entered into a lease agreement with 

Beverly Hills Estate for the property following the Warners’ eviction.

The opposition was supported by a new declaration from Distaso, who provided 

more detailed information about his prior service of summons on the Warners. 

According to the declaration, when Distaso went to the residence at 20454 Pacific Coast 

Highway on February 21, 2013, he asked the man who answered the door if the Warners 

were home. The man said “this was their house, but they were not home.” Distaso 

determined that the man was “an adult apparently in charge of the premises and member 
10

of the household.” He handed the man copies of the summons and complaint, described 

the nature of the documents to him, and then left the premises. As Distaso was leaving, 

he looked at the mailbox affixed to the front of the residence, which had “an open cover 

so that anyone on the driveway can see in plain sight.” Distaso saw “several letters 

addressed to Martin and Susan Warner, including bills [from] Southern California Edison 

Company, Charter Cable Television, and the City of Malibu.”

As further set forth in the declaration, Distaso previously had served notices to 

quit on the Warners at the 20454 Pacific Coast Highway address. Prior to serving the 

notices, Distaso reviewed title records from the Los Angeles County Recorder and 

determined from those records that “Martin and Susan Warner used the premises as 

their usual mailing address and were the tenants in possession of the premises.” Distaso 

attached copies of four recorded documents to his declaration, which he claimed showed 

that the 20454 Pacific Coast Highway property was the Warners’ usual mailing address 

and residence.

6 He also stated that, in serving the notices to quit, he “went to the property 

on ma[n]y different occasions and saw the mail addressed to Martin and Susan Warner in 

the mailbox.” Distaso never received back any documents that he had mailed to the 

Warners at the 20454 Pacific Coast Highway address. 

The opposition also was supported by a declaration from Maureen Jaroscak, the 

manager for Beverly Hills Estate. According to the declaration, Beverly Hills Estate 

 

6 The first document, entitled “Assignment of Lease,” indicated that, on November 

20, 2006, Martin Warner assigned his interest in the 1976 Agreement to Susan Warner as 

her sole and separate property. The second document, entitled “Grant Deed,” showed 

that, on May 21, 2007, Susan Warner granted to herself and Martin Warner her interest in 

the 20454 Pacific Coast Highway property, including both the land and the dwelling unit. 

The third document, entitled “Deed of Trust With Assignment of Rents,” reflected that, 

on September 9, 2009, the Warners, as trustors, transferred legal title in the 20454 Pacific 

Coast Highway property to First American Title Company of Los Angeles, as trustee, 

with Dojenic, LLC acting as the beneficiary. The fourth document, entitled “Notice of 

Trustee’s Sale,” stated that Susan Warner was in default under a separate deed of trust 

dated May 21, 2007, and that a public auction for sale of the 20454 Pacific Coast 

Highway property was scheduled for April 25, 2013.
11

acquired ownership of the property located at 20454 Pacific Coast Highway on 

December 4, 2012 pursuant to a grant deed. The Warners were the lessees of the

property under a lease agreement, but were not the owners of the property and were 

prohibited from subleasing the premises without permission of the owner, which they 

never requested or received. On December 7, 2012, Jaroscak directed Distaso to serve a 

notice informing the Warners of the change in ownership at the 20454 Pacific Coast 

Highway address. Jaroscak thereafter visited the property on three to four occasions, but 

never found anyone at home. When Beverly Hills Estate acquired the property, the 

Warners had not paid rent for more than two years, had failed to maintain the premises, 

had failed to pay property taxes or insurance, and had subleased the premises without 

permission. On December 15, 2012, Jaroscak directed Distaso to serve notices to quit on 

the Warners at the 20454 Pacific Coast Highway address. Beverly Hills Estate later filed 

an unlawful detainer action against the Warners, and after obtaining a default judgment 

and writ of possession, Jaroscak arranged for the Los Angeles County Sheriff to evict 

them from the premises. On August 6, 2013, Jaroscak accompanied a sheriff’s deputy to 

the property, and upon entry into the house, she discovered that many of the fixtures were 

missing, damaged, or destroyed. On August 15, 2013, Beverly Hills Estate entered into a 

lease agreement with Golden State Practice Management, which was recorded on August 

23, 2013. Since that time, Golden State Practice Management had been in peaceful 

possession of the property.

Jaroscak attached a number of documents to her declaration, including a grant 

deed from Dojenic LLC, which was signed on August 31, 2012 and recorded with the 

Los Angeles County Recorder on December 4, 2012. The deed stated that Dojenic was 

granting to Beverly Hills Estate the real property described as follows: “An undivided 

one-half interest in Lot 4 of Tract No. 26816, in the county of Los Angeles, state of 

California, as per map recorded in book 694 pages 66 and 67 of Maps, in the office of the 
12

county recorder of said county . . . [e]xcept all buildings and improvements situated on 

said land, which are and shall remain real property.”7 

VI. The Trial Court’s Ruling

On December 19, 2013, the trial court held a hearing on the Warners’ motion to 

set aside the defaults and the default judgment. In a minute order entered on that date, 

the trial court found that service of process was proper and denied the Warners’ motion. 

On February 5, 2014, the Warners filed a timely notice of appeal.8

DISCUSSION

On appeal, the Warners challenge the trial court’s order denying their motion to 

set aside the defaults and the default judgment. They contend that they were entitled to 

relief from default under section 473, section 473.5, and the equitable powers of the court

because they were not properly served with a summons and complaint and lacked actual 

notice of the proceeding in time to defend the action. They also claim that the remedy of 

unlawful detainer was not available to recover the property at issue in this case, and that 

even assuming an action in unlawful detainer could be properly brought against them, the 

relief awarded by the clerk of the court exceeded its jurisdiction. 

 

7

Jaroscak did not explain in her declaration how Dojenic came to acquire an 

ownership interest in the property. Although Dojenic was identified as the beneficiary 

of a September 9, 2009 deed of trust signed by the Warners, there is no indication in 

the record that the trustee ever foreclosed on that deed. While Jaroscak’s declaration also 

referenced a May 30, 2007 deed of trust, which she alleged was secured by a lease rather 

than an ownership interest in the property, a copy of this deed was not attached to the 

declaration or included elsewhere in the record on appeal. 

8 On December 1, 2014, Beverly Hills Estate filed a motion to augment the record 

on appeal and a motion to dismiss the appeal as untimely. By separate order, this Court 

granted the motion to augment and denied the motion to dismiss. 
13

I. Validity of Service of Process

We first address whether service of process on the Warners was valid. 

“‘[C]ompliance with the statutory procedures for service of process is essential to 

establish personal jurisdiction. [Citation.] Thus, a default judgment entered against a 

defendant who was not served with a summons in the manner prescribed by statute is 

void.’ [Citation.]” (Sakaguchi v. Sakaguchi (2009) 173 Cal.App.4th 852, 858.) “Under 

section 473, subdivision (d), the court may set aside a default judgment which is valid on 

its face, but void, as a matter of law, due to improper service. [Citations.]” (Ellard v. 

Conway (2001) 94 Cal.App.4th 540, 544.) “When a defendant challenges the court’s 

personal jurisdiction on the ground of improper service of process ‘the burden is on the 

plaintiff to prove the existence of jurisdiction by proving . . . the facts requisite to an 

effective service.’” (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413, fns. 

omitted; American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 387.) 

“Where the question on appeal is whether the entry of default and the default judgment 

were void for lack of proper service of process, we review the trial court’s determination 

de novo. [Citation.]” (Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1200.) 

Section 415.20, subdivision (b) authorizes substitute service of process on an 

individual in lieu of personal delivery. It provides, in relevant part: “If a copy of the 

summons and complaint cannot with reasonable diligence be personally delivered to the 

person to be served, . . . a summons may be served by leaving a copy of the summons and 

complaint at the person’s dwelling house, usual place of abode, usual place of business, 

or usual mailing address other than a United States Postal Service post office box, in the 

presence of a competent member of the household or a person apparently in charge of his 

or her office, place of business, or usual mailing address other than a United States Postal 

Service post office box, at least 18 years of age, who shall be informed of the contents 

thereof, and by thereafter mailing a copy of the summons and of the complaint by firstclass mail, postage prepaid to the person to be served at the place where a copy of the 

summons and complaint were left.” (§ 415.20, subd. (b).) 
14

Under section 415.20, “an individual may be served by substitute service only

after a good faith effort at personal service has first been made. . . . Two or three attempts 

to personally serve a defendant at a proper place ordinarily qualifies as ‘“reasonable 

diligence.”’” (American Express Centurion Bank v. Zara, supra, 199 Cal.App.4th at 

p. 389.) Additionally, the “‘“purpose of . . . section 415.20 is to permit service to be 

completed upon a good faith attempt at physical service on a responsible person. . . .” 

[Citation.] Service must be made upon a person whose “relationship with the person to 

be served makes it more likely than not that they will deliver process to the named party.” 

[Citation.]’” (Hearn v. Howard, supra, 177 Cal.App.4th at p. 1203.) 

In the proofs of service of summons filed with the trial court, Beverly Hills Estate 

alleged that it had served the Warners with the summons and complaint on February 21, 

2013 by substitute service at their “dwelling house” or “usual place of abode.” 

According to the proofs of service and the supporting declaration of diligence, Distaso 

made three attempts to personally serve the Warners at their “residence address” on

20454 Pacific Coast Highway before leaving the documents with a 45-year-old man with 

dark hair and eyes who answered the door and confirmed that he lived on the premises. 

In a subsequent declaration, Distaso also stated that he asked the man if Martin and Susan 

Warner were home and was told that “this was their house, but they were not home.” 

After the man agreed to accept the documents, Distaso mailed copies to the Warners by 

first class mail at the 20454 Pacific Coast Highway address. 

In considering whether substitute service in this case was proper, it is undisputed 

that the Warners began leasing the land located at 20454 Pacific Coast Highway in May 

1985, and that at times prior to September 2012, they lived in the house situated on that 

land. However, the fact that a party may have resided at a particular address at some time 

in the past does not demonstrate that such address was their “dwelling house” or “usual 

place of abode” at the time of service. In a declaration submitted in support of the motion 

for relief from default, Susan Warner specifically denied that she and Martin Warner

were residing at the 20454 Pacific Coast Highway address as of the date of service on

February 21, 2013. Rather, as set forth in that declaration, the Warners began renting the 
15

house to a third party in September 2012, and had been residing at a separate address in 

Shadow Hills since that time. The Warners also had initiated an eviction action against 

their tenant in December 2012 for failure to pay rent, and did not recover possession of 

the premises until eight months later in July 2013. 

In opposing the motion for relief from default, Beverly Hills Estate did not dispute

any of these facts. Instead, Beverly Hills Estate pointed to the Warners’ lease agreement

and other publicly recorded documents related to the property to argue that the 20454 

Pacific Coast Highway address was the Warners’ residence for the purpose of substitute 

service. Although the 1976 Agreement and 1985 Amendment show that the Warners 

acquired an interest in the property in May 1985, they do not support a finding that the 

Warners were still living at that address nearly 28 years later when service of process was 

attempted there. Likewise, the title records submitted by Beverly Hills Estate merely 

reflect that the Warners continued to claim an ownership and/or leasehold interest in the 

property at various times between 2006 and 2011. However, the records do not establish

that the Warners were holding out the 20454 Pacific Coast Highway address as their 

place of residence at the time of service in February 2013. 

Beverly Hills Estate also asserts that the 20454 Pacific Coast Highway address 

must be considered the Warners’ residence because their lease prohibited them from 

subleasing the premises without the landlord’s written consent. Even assuming the 

sublease of the house constituted a breach of the lease agreement, there is no evidence 

that the Warners falsely represented to Beverly Hills Estate or its predecessor-in-interest

that they were residing on the property at the time of service. To the contrary, the record 

reflects that Beverly Hills Estate was aware the Warners had subleased the premises on 

multiple occasions without obtaining consent, and it actually based its unlawful detainer

action against the Warners, in part, on this alleged breach. While a “‘“defendant will not 

be permitted to defeat service by rendering physical service impossible”’” (Hearn v. 

Howard, supra, 177 Cal.App.4th at p. 1202), there is no evidence that the Warners 

decided to rent the house and move to a new residence in an attempt to evade service. 

According to Susan Warner, the decision to rent the house in September 2012 was made 
16

in an effort to avoid foreclosure on a separate deed of trust for the house, and the Warners 

did not learn of the action filed against them until they recovered possession of the 

premises in July 2013. Because the uncontroverted evidence establishes that the Warners 

were no longer residing at the 20454 Pacific Coast Highway address as of the date of 

service, substitute service was not accomplished at the Warners’ “dwelling house” or 

“usual place of abode” in accordance with section 415.20, subdivision (b).

In its opposition to the motion for relief from default, Beverly Hills Estate offered 

an alternative theory to support its claim that service of process on the Warners was 

proper. Specifically, it contended that the 20454 Pacific Coast Highway address was also

the Warners’ “usual mailing address” within the meaning of section 415.20, subdivision 

(b). In a declaration submitted in support of this argument, Distaso recounted that, as he 

was leaving the premises on February 21, 2013, he looked at the mailbox affixed to the 

front of the residence and saw “several letters addressed to Martin and Susan Warner, 

including bills [from] Southern California Edison Company, Charter Cable Television, 

and the City of Malibu.”9 Distaso also stated that, he had reviewed the title records for 

the 20454 Pacific Coast Highway property, and determined from those records that the 

Warners were using the premises as their “usual mailing address.” 

Section 415.20 does not define the term “usual mailing address.” However, 

Black’s Law Dictionary (10th ed. 2014) defines the word “usual” as “1. [o]rdinary; 

customary. 2. [e]xpected based on previous experience, or on a pattern or course of 

conduct to date.” Beverly Hills Estate argues that the mail found by Distaso when he 

visited the premises on February 21, 2013 proves that the Warners were continuing to use 

the residence as their usual mailing address even if they were no longer living there. Yet 

 

9 Distaso later asserted in that same declaration that he “went to the property on 

ma[n]y different occasions and saw the mail addressed to Martin and Susan Warner in the 

mailbox which [he] noted on [his] legal pad.” However, it is unclear from the declaration 

whether Distaso is claiming that he saw mail addressed to the Warners on many different 

occasions, or saw mail addressed to the Warners on one occasion in his many visits to the 

property. 
17

Distaso’s declaration merely shows that, on one occasion in February 2013, an electric 

bill, a cable bill, and an unidentified municipal bill were mailed to the attention of the 

Warners at the 20454 Pacific Coast Highway address. Given that the Warners were 

renting the house to a tenant on a month-to-month basis as of September 2012, it would 

not have been unusual for the utility bills for the house to remain in their name for a 

period of time at that mailing address. There was no evidence that the tenant was 

forwarding those bills or any other mail to the Warners at their new address in Shadow 

Hills, or that the Warners were continuing to visit the premises on any customary basis to 

pick up mail. Instead, the only evidence regarding the Warners’ actual receipt of mail at 

that address was Susan Warner’s statement in her declaration that they first discovered

documents in the unlawful detainer action against them in July 2013, when they 

recovered possession of the residence from their tenant and found the documents lying on 

the floor. 

Contrary to Beverly Hills Estate’s contention, the title records also fail to show 

that the Warners customarily were receiving mail at the 20454 Pacific Coast Highway 

address at the time of service. As discussed above, the title records merely demonstrate

that the Warners continued to claim an interest in the property between 2006 and 2011, 

and that they used that interest to obtain loans secured by a deed of trust on the property. 

Only one of the records, a deed of trust from September 2009, identified 20454 Pacific 

Coast Highway as the Warners’ then current address, but it does not support an inference

that the Warners were receiving mail at that address after they moved out of the residence

and began renting it to a third party in September 2012. Distaso’s statement that the 

Warners were still using the residence as their usual mailing address at the time of service 

is therefore not supported by the title documents or any other evidence in the record. 

Based on this record, Beverly Hills Estate has failed to establish that, as of the date

of service, the 20454 Pacific Coast Highway address was the Warners’ “dwelling house, 

“place of abode,” or “usual mailing address” within the meaning of section 415.20, 

subdivision (b). Accordingly, substitute service on Martin and Susan Warner at that 
18

address was ineffective to constitute valid service of process, and the default and default 

judgment entered against each of them are void as a matter of law.

II. Relief from Default Under Section 473, Subdivision (d)

Beverly Hills Estate asserts that, even if service of process was improper, the 

Warners are not entitled to relief from default because they failed to bring their motion 

within the time limitations of section 473. “Where a party moves under section 473, 

subdivision (d) to set aside ‘a judgment that, though valid on its face, is void for lack of 

proper service, the courts have adopted by analogy the statutory period for relief from a 

default judgment’ provided by section 473.5. . . . [Citations.]” (Trackman v. Kenney

(2010) 187 Cal.App.4th 175, 180; see also Rogers v. Silverman (1989) 216 Cal.App.3d 

1114, 1124.) Section 473.5 requires that a motion to set aside a default or a default 

judgment based on lack of actual notice of the action be filed and served “within a 

reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a 

default judgment . . .; or (ii) 180 days after service . . . of a written notice that the default 

or default judgment has been entered.” (§ 473.5, subd. (a).) In this case, the Warners 

filed and served their motion for relief from default by October 2, 2013, which was less 

than: (i) two years after entry of the original default judgment on April 5, 2013, and (ii) 

180 days after service of the notice of entry of default judgment on April 8, 2013. The 

Warners thus complied with the mandatory limitations period of section 473.5. 

Beverly Hills Estate nevertheless argues that the Warners failed to exercise 

reasonable diligence in seeking relief because they filed their motion five and a half 

months after entry of the default judgment. However, the reasonable time requirement 

of sections 473 and 473.5 focuses on the period between discovery of the default and 

filing of the motion for relief from default. (Huh v. Wang (2007) 158 Cal.App.4th 1406, 

1420 [party seeking relief from default under section 473, subdivision (b) “‘“must show a 

satisfactory excuse for his default, and . . . diligence in making the motion after discovery 

of the default”’”]; Schenkel v. Resnik (1994) 27 Cal.App.4th Supp. 1, 4 [reasonable time 

provision of section 473.5 requires “‘“diligence in making the motion after discovery of 
19

the default”’”].) The undisputed evidence shows the Warners did not learn of the default,

or the unlawful detainer action against them, until sometime between July 24, 2013 

(when they recovered possession of the premises from their tenant) and August 6, 2013 

(when they were evicted from the premises by Beverly Hills Estate). Prior to that time, 

the Warners lacked actual notice of the action because they did not have possession of the 

property where the summons and complaint had been served, and were in an adverse

relationship with the non-paying tenant who apparently accepted service on their behalf. 

Therefore, while it is true that the Warners did not seek relief from default until 

almost six months after entry of the default judgment, they filed their motion only two 

months after their discovery of the default and within the mandatory time limitations 

of the statute. Given the strong public policy in favor of a trial on the merits, the Warners 

were entitled to relief from default based on the lack of valid service of process, and the 

trial court erred in denying their motion to set aside the defaults and the default judgment 

under section 473, subdivision (d). (See Zamora v. Clayborn Contracting Group, Inc.

(2002) 28 Cal.4th 249, 256 [“‘the provisions of section 473 . . . are to be liberally 

construed and sound policy favors the determination of actions on their merits’”]; 

Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980 [“[b]ecause the law favors disposing 

of cases on their merits, ‘any doubts in applying section 473 must be resolved in favor 

of the party seeking relief from default’”].)

III. Failure to State a Cause of Action in Unlawful Detainer

As a separate and independently sufficient ground for setting aside the default 

judgment, we conclude that the complaint filed against the Warners failed to state a cause 

of action in unlawful detainer. As this Court has explained, “[i]t is well established a 

default judgment cannot properly be based on a complaint which fails to state a cause of 

action against the party defaulted because . . . ‘[a] defendant who fails to answer admits 

only facts that are well pleaded.’” (Falahati v. Kondo (2005) 127 Cal.App.4th 823, 829, 

fns. omitted (Falahati); see also Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 

267, 282 (Kim) [“if the well-pleaded allegations of the complaint do not state any proper 
20

cause of action, the default judgment in the plaintiff’s favor cannot stand”].) “A default 

judgment is void if the trial court lacked jurisdiction over the parties or the subject matter 

of the complaint or if the complaint failed to ‘apprise[] the defendant of the nature of the 

plaintiff’s demand. . . .’” (Falahati, supra, at p. 830, fns. omitted.) Although “[a] court 

must indulge reasonable inferences in support of the factual allegations in the 

complaint[,] . . . the absence of essential factual allegations is fatal to a judgment against 

the defendant.” (Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 393.) 

“Moreover, ‘[w]hen considering the legal effect of those facts, we disregard any 

erroneous or confusing labels employed by the plaintiff.’ [Citations.]” (Kim, supra, at 

p. 282.) “[W]hether the default and default judgment complied with constitutional and 

statutory requirements are questions of law as to which we exercise independent review.” 

(Falahati, supra, at p. 828, fn. omitted.)

“Unlawful detainer actions are authorized and governed by state statute.

[Citation.] The statutory scheme is intended and designed to provide an expeditious 

remedy for the recovery of possession of real property. [Citations.] Unlawful detainer 

actions are, accordingly, of limited scope, generally dealing only with the issue of right to 

possession and not other claims between the parties, even if related to the property.

[Citation.] . . . Nevertheless, unlawful detainer proceedings are procedurally technical, 

with stringent service and notice requirements, and stringent procedural deadlines.

[Citations.]” (Larson v. City and County of San Francisco (2011) 192 Cal.App.4th 1263, 

1297.) Indeed, “‘[i]t has long been recognized that the unlawful detainer statutes are to 

be strictly construed and that relief not statutorily authorized may not be given due to the 

summary nature of the proceedings.’” (Underwood v. Corsino (2005) 133 Cal.App.4th 

132, 136-137.) “The statutory requirements in such proceedings ‘“must be followed

strictly, otherwise a landlord’s remedy is an ordinary suit for breach of contract with all 

the delays that remedy normally involves and without restitution of the demised 

property.” [Citation.]’” (WDT-Winchester v. Nilsson (1994) 27 Cal.App.4th 516, 526.)

Section 1161 defines the types of contractual relationships that may give rise to an 

unlawful detainer action. Under the statute, the unlawful detainer “remedy is available in 
21

only three situations: to a lessor against a lessee for unlawfully holding over or for breach 

of a lease; to an owner against an employee, agent, or licensee whose relationship has 

terminated; and to a purchaser at an execution sale, a sale by foreclosure, or a sale under 

a power of sale in a mortgage or deed of trust against the former owner and possessor.” 

(Greene v. Municipal Court (1975) 51 Cal.App.3d 446, 450 (Greene).) Thus, to state a 

valid cause of action in unlawful detainer, the complaint must allege the existence of a 

landlord-tenant relationship between the parties or some other relationship that legally 

supports the summary remedy of unlawful detainer as defined in the statute. (Id. at 

pp. 450-451; see also Francis v. West Virginia Oil Co. (1917) 174 Cal. 168, 170 [“[i]n 

order that such an [unlawful detainer] action may be maintained the conventional relation 

of landlord and tenant must be shown to exist”]; Goetze v. Hanks (1968) 261 Cal.App.2d 

615, 616 [“[t]he remedy of unlawful detainer is a statutory and summary one, and a 

person who seeks it must bring himself clearly within the relationship between himself 

and the occupier of the property that is described in the statute”].) The complaint also 

must “[s]et forth the facts on which the plaintiff seeks to recover,” and “[d]escribe the 

premises with reasonable certainty.” (§ 1166, subd. (a).)

As the Court of Appeal observed in Greene, in considering whether a particular 

agreement for real property can support an unlawful detainer action, “[t]he relationship 

created by the agreement must be characterized by reference to the rights and obligations 

of the parties and not by labels.” (Greene, supra, 51 Cal.App.3d at p. 450.) In Greene, 

the parties entered into a conditional sale agreement for real property which provided

that, in the event of a default by the buyer, “all moneys theretofore paid by buyer shall 

belong to seller as rent and compensation for the use and occupancy of said real property, 

and seller shall be entitled to immediate possession thereof . . . .” (Id. at p. 449.) The 

Court of Appeal held that the complaint failed to state a cause of action in unlawful 

detainer because “[a] vendee in possession of land under a contract of sale who has 

defaulted in the payment of an installment of the purchase price, is not subject to removal 

by the summary method of unlawful detainer.” (Id. at p. 451; see also Francis v. West 

Virginia Oil Co., supra, 174 Cal. at p. 171 [“vendee in possession is not a tenant in any 
22

sense of the word, and only a tenant may be sued under . . . section 1161”]; Goetze v. 

Hanks, supra, 261 Cal.App.2d at p. 617 [“vendor [who] chose to sell his land, . . . created 

the relationship of seller and buyer,” and “certain legal remedies are available to him, 

but not the summary one of unlawful detainer”].) In contrast, in Provouskivitz v. Snow

(1977) 74 Cal.App.3d 554, 556-557, the parties entered into both a contract of sale and 

a lease agreement for real property, which provided that the sale was conditional upon the 

outcome of pending litigation and the buyer-lessee was taking possession of the property 

by way of the lease until completion of the sale. The Court of Appeal held that an 

unlawful detainer action could be brought against the buyer-lessee for failure to pay rent 

under the lease because “possession was assumed by virtue of the lease agreement,” and 

“[s]o long as possession is achieved through the landlord-tenant relationship, unlawful 

detainer may properly be utilized to regain possession.” (Id. at p. 558.) 

In this case, Beverly Hills Estate filed an unlawful detainer complaint against the 

Warners in which it sought restitution of certain property to which it had no legal right 

of possession. The complaint alleged that Beverly Hills Estate was the “owner” of the 

“premises” located at “20454 Pacific Coast Highway, Malibu, California, 90265,” 

and that the Warners were in “possession of the premises” pursuant to a written lease

agreement with a predecessor-in-interest. In addition to monetary damages and forfeiture 

of the agreement, the complaint sought “possession of the premises,” but made no 

distinction between the land and the dwelling house situated on the land. The notices to 

quit, which were attached as exhibits to the complaint, similarly alleged that the Warners 

were in possession of the “premises” located at “20454 Pacific Coast Highway, Malibu, 

California 90265” pursuant to a “lease or rental agreement,” and demanded that the 

Warners either remedy certain violations of the lease agreement or vacate the “premises”

within a specified time period. The notices to quit likewise did not distinguish between 

the land and the dwelling house. In contrast, the 1976 Agreement and 1985 Amendment, 

which were alleged to form the basis of the complaint and were also attached as exhibits, 

demonstrated that there was a critical distinction between ownership of the land and 

ownership of the house. Under the amended agreement, the Warners were lessees of the 
23

land pursuant to a long-term land lease, but were buyers of the dwelling house pursuant 

to a contract of sale.10 While Beverly Hills Estate alleged in its complaint that it was a 

successor-in-interest to the lease, it did not allege that it was a successor-in-interest to the 

contract of sale or had otherwise acquired an ownership interest in the dwelling house at 

any time. The agreement on which Beverly Hills Estate was basing its unlawful detainer 

complaint thus showed that Beverly Hills Estate was seeking possession of a dwelling 

house on that property which it did not own.

The record further reflects that, at the time the trial court ruled on the Warners’ 

motion for relief from default, there was additional evidence before the court that Beverly 

Hills Estate did not have any ownership interest in the dwelling house. In a declaration 

filed in support of the Warners’ motion, Susan Warner specifically stated that Beverly 

Hills Estate did not own the dwelling house on the property. She also asserted that the 

Warners were the owners of the house, and that they never entered into a lease agreement 

with Beverly Hills Estate for occupancy of the house. In opposing the Warners’ motion, 

Beverly Hills submitted evidence showing that it acquired its interest in the property 

pursuant to an August 2012 grant deed. However, by its terms, the grant deed solely 

conveyed the land located on the property and expressly excluded “all buildings and 

improvements on said land.” Despite this evidence, Jaroscak, the manager of Beverly 

Hills Estate, submitted a declaration in opposition to the Warners’ motion in which she 

described “premises” owned by the company as including the house, and alleged that the 

Warners had breached their lease agreement, in part, by causing damage to the house. 

The record also shows that, in requesting entry of a default judgment against the Warners

and a writ of possession, Beverly Hills Estate did not limit its claim for relief to 

restitution of the land, but rather sought possession of the entire premises, including the 

 

10 “When a plaintiff attaches a written agreement to his [or her] complaint, and 

incorporates it by reference into his [or her] cause of action, the terms of that written 

agreement take precedence over any contradictory allegations in the body of the 

complaint. ‘If facts appearing in the exhibits contradict those alleged, the facts in 

the exhibits take precedence.’ [Citations.]” (Kim, supra, 201 Cal.App.4th at p. 282.)
24

house, as a remedy for unlawful detainer. The Warners were thereafter evicted from both 

the land and the house by the Los Angeles County Sheriff, and possession of the entire 

premises was given to Beverly Hills Estate.

On appeal, Beverly Hills Estate does not identify any provision in the 1976 

Agreement or 1985 Amendment which could support a finding that it held an ownership 

interest in the dwelling house at the time it commenced the unlawful detainer action 

against the Warners. Instead, Beverly Hills Estate asserts that there was “no reasonable 

dispute that [it] was the owner of the property” because it presented “a recorded deed 

showing title vested in Beverly Hills Estate for the premises,” and “[t]here was no 

showing that [the Warners] own the building.” Beverly Hills Estate also points out that 

granting the Warners relief from default would displace a bona fide lessee. However, as 

the party seeking the summary remedy of unlawful detainer, the burden was on Beverly 

Hills Estate to demonstrate strict compliance with the statute, including establishing the 

existence of an ownership interest that would entitle it to possession of the specific

premises sought. The grant deed on which Beverly Hills Estate relies to support its right 

of possession directly contradicts its claim that it had an ownership interest in the entire 

premises, and it offers no other evidence to show that an unlawful detainer remedy was 

available in this case. 

Beverly Hills Estate further argues that any dispute over ownership of the house 

cannot be considered on appeal because the Warners failed to raise the issue of title in 

either their motion for relief from default or in a separate action to quiet title, and the only 

triable issue in an unlawful detainer proceeding is the right to possession of the premises. 

However, “[f]ailure of a complaint to state a cause of action and lack of jurisdiction of 

the trial court are matters that may be raised initially on appeal[,] . . . are not waived by 

any failure to raise them in the trial court.” (Greene, supra, 51 Cal.App.3d at p. 450; see 

also Falahati, supra, 127 Cal.App.4th at p. 831, fn. 18 [“questions of jurisdiction are 

never waived and may be raised for the first time on appeal as may the failure of the 

complaint to state a cause of action”].) In any event, the record reflects that the Warners 

expressly argued in their motion that an unlawful detainer proceeding was improper 
25

because Beverly Hills Estate “did not own the residential dwelling at the time of filing,” 

“there was no oral or written lease between the parties for rental of the premises,” and

“[t]here was only a land lease and . . . Susan Warner own[ed] the home and related 

improvements.” Additionally, contrary to Beverly Hills Estate’s claim, the Warners were 

not required to bring a separate quiet title action to challenge these defects in the 

complaint. “While the validity of titles may not be tried in proceedings [for unlawful 

detainer], evidences of title are admissible to show the character or extent of 

the possession claimed.” (Francis v. West Virginia Oil Co., supra, 174 Cal. at p. 170.)

Because the complaint filed by Beverly Hills Estate failed to state a cause of 

action in unlawful detainer, the default judgment entered against the Warners is void as 

a matter of law and must be reversed. (Greene, supra, 51 Cal.App.3d at pp. 451-452

[reversing default judgment in unlawful detainer action where the “complaint, if it states 

a cause of action at all, states it on a theory other than unlawful detainer”].) This 

conclusion necessarily means that if Beverly Hills Estate wishes to maintain an action 

against the Warners for allegedly violating the terms of their lease agreement, it must 

amend its complaint to state a cause of action that would entitle it to the specific relief 

sought, and must serve its amended complaint on the Warners in accordance with the 

statutory procedures for service of process. The Warners shall then be entitled to file a 

responsive pleading to the amended complaint within the applicable statutory period.11

 

11 In light of this conclusion, we need not address the parties’ remaining arguments 

concerning whether the Warners were entitled to relief from default under section 473, 

subdivision (b), section 473.5, or the equitable powers of the court, and whether the clerk 

exceeded its jurisdiction in awarding monetary damages in the default judgment.
26

DISPOSITION

The order denying the Warners’ motion to set aside their defaults and the default 

judgment is reversed and the matter is remanded to the trial court with directions to enter 

new and different order vacating the defaults and the default judgment entered against 

Martin and Susan Warner and to conduct further proceedings in accordance with this 

opinion. The Warners shall recover their costs on appeal.

ZELON, J.

We concur:

PERLUSS, P. J.

IWASAKI, J.



 



Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.